Coke of Norfolk

A Cleveland lawyer who has been a professor at the Harvard Law School since 1935 and its dean since 1916, ERWIN N. GRISWOLD gives us his appraisal of The Lion and the Throne by Catherine Drinker Bowen. In recognition of her bock Mrs. Bowen is to receive the Henry M. Phillips Prize conferred by the American Philosophical Society for an outstanding contribution to American jurisprudence.



A LITTLE more than four centuries ago there was born in one of England’s most productive counties a man whose influence and contribution were prodigious. Despite his great work, he has been for most of us a shadowy figure, little more than a symbol in the long development of English constitutional history. Now Catherine Drinker Bowen in The Lion and the Throne (Atlantic-Little, Brown, $6.00) has brought him back to life. With great skill she has put flesh on his bones and red blood in his veins. Coke is surely one of our great heroes. But he was also a rather crude and difficult man. When he died, his second wife wrote, with ample reason, “We shall never see his like again, praises be to God.”

Mrs. Bowen has always written colorfully. In Yankee from Olympus she wrote a biography which was considerably fictionalized. In John Adams and the American Revolution she stayed much closer to identifiable sources. In this most recent book, she has followed traditional standards of biography. Yet she has done this without failing to create the impression, the picture of the man and his setting, which is such an important part of effective biographical writing. Even the occasional purplish passage seems most fitting; for Coke was a purply man who got into purply situations. In this book Mrs. Bowen joins with Miss C. V. Wedgewood as one of those who have re-created for our time a moving understanding of the late sixteenth and early seventeenth centuries. In some ways this period seems long ago; but it has its lessons for today.

Coke was born in the middle of the sixteenth century, and he was clearly a child of the Middle Ages. Yet before his life was finished, after more than eighty years, he had himself done much to start the modern era and to breathe life into the beginnings of modern conceptions of law and government. Mrs. Bowen, through her carefully documented work, shows how the modern political and legal institution of government under law is in a real sense the lengthened shadow of Sir Edward Coke.

Coke was called to the bar in 1578, at the age of twenty-six. For the next several years he prospered as a lawyer, and added to his prosperity by marrying “his first and best wife” (as his daughter said in her epitaph), who had a handsome dowry. In 1590 he was sent to Parliament. In 1592 Elizabeth named him Solicitor General. And in 1593 he was made Speaker of the House of Commons. It is something of an index of the times that this was an appointment of the Queen and not an election by the Commons. From this period until the end of his life Coke was always a public figure, possibly the public figure of that exciting forty years.

There is little about Coke which is agreeable or lovable, or even pleasant, and Mrs. Bowen does not conceal this fact. As a government lawyer he provided an example for the worst of his successors. Standards for criminal trials at the time were primitive, to say the most for them. The defendant was not entitled to counsel; he had to present his own defense. There was a jury, but it knew that it was subject to fine and imprisonment if it did not do what w as expected of it. Very few defendants were able to escape this machinery. In addition, the defendants were subjected to torture to produce confessions, and Coke freely participated in this. As Mrs. Bowen points out, this was not part of the trial procedure. It was not ordered by the courts. It was done under the royal prerogative, that limitless reserv oir of absolute power which Coke himself was finally to challenge.

As long as Elizabeth lived, Coke was the dutiful and apparently unquestioning serv ant of the crown. He prosecuted Lopez (the Queen’s physician) and the Earl of Essex. In these and other cases he showed his brutal, ruthless qualities. This was the period immediately following the Armada. England was jittery. Spanish bribes and Spanish traitors, real and suspected, kept a prosecutor busy. Coke did not seem to have much time or thought, for fundamental questions of government or for such matters as justice and fairness. His basic effort was to keep on top of the heap in seeking the royal favor — specifically, to keep ahead of Francis Bacon. In this, his zeal and his ability combined to make him eminently successful.

When James I succeeded to the crown, this pattern continued. Almost immediately there was the prosecution of Sir Walter Ralegh (as Mrs. Bowen spells it), in which Coke outdid himself in vituperation and in unfair restriction on the defendant’s opportunity — without counsel, of course—to defend himself. Then came the Gunpowder Plot and the trial of Catholic priests. James knew a good man when he saw him. Coke was quickly knighted — an honor which Elizabeth had always withheld. And within three years Coke was made Chief Justice of the Common Pleas. This proved to be perhaps James’s greatest mistake. Or it may have been his greatest contribution to posterity, for it laid the first modern foundation for responsible and democratic government.


TUDOR England ceased in 1603 when Elizabeth died, and Stuart England began. Coke did not become a judge until 1606. Until then, he was a man of the Middle Ages; his look was back. Afterwards, and almost immediately, his look was ahead, into the new century. The change is dramatic, and follow ing it under Mrs. Bowen’s guidance is fascinating.

Almost immediately after becoming a judge, Coke set about attempting to restrict what he regarded as the excesses of governmental bodies. Mrs. Bowen writes about each of these episodes clearly and with detail. As she talks about the High Commission, the first object of Coke’s attention, we can feel the atmosphere of that ecclesiastical tribunal. The High Commission endeavored to punish a barrister for contempt; and Coke endeavored to prevent the High Commission’s action. This time Coke lost. But soon thereafter his writs of prohibition were effective against the High Commission, and he was well started on his way as a foe of what he regarded as irresponsible governmental power.

Mrs. Bowen gives a careful account of perhaps the most notable event in Coke’s career—if it actually did occur. The commonly accepted story appears in Coke’s Reports. But this volume of the Reports was not published until long after his death, and there is no way to tell what is real report and what is afterthought. As Mrs. Bowen points out, others who made records at the time do not tell it as well as Coke. It was in 1608 that the king summoned the judges before him. He asserted the basic prerogative power, that all judges acted under him and by his authority, and particularly that the king could decide any case himself if he so chose. In particular, said James, the king could decide any question of jurisdiction as between the judges. He said that he would protect the common law. To which Coke replied that the law protected the king. This aroused the king’s ire, and there was further discussion. James said that what Coke said meant that the king was under the law, which was treason. To which Coke replied, according to his own belated version, “that Bracton saith, Quod Rex non debet esse sub homine, sed sub Deo et Lege — that the King should not be under man, but under God and the Law.” (Mrs. Bowen translates this as “under God and the Laws,” which loses some of the meaning. It was the common law whose supremacy Coke was asserting.) Whether Coke actually said it or not, he gets credit for saying it. And it was typically Coke, for it is a very ingenious use of Bracton. What Bracton wrote, in the thirteenth century, was: “But the king himself ought not to be subject to man, but subject to God and the law.” Thus Coke cited Bracton for something very close to the opposite of what Bracton himself meant, when he used the words to assert the king’s subjection to the law, with Coke declaring the law.

Mrs. Bowen then gives vivid accounts of other events which happened in quick succession. There is Dr. Bonham’s case, in which Coke held — or at least said — that an Act of Parliament would be void when it “is against common right and reason.” Coke continued to battle with the High Commission and with the Chancery under Lord Chancellor Ellesmere. He was increasingly successful against the High Commission, but rather less than successful against the Chancery. As a technical matter, this was not a matter of appeal to the Chancery as Mrs. Bowen suggests. In this case the equity court had the advantage of acting in personam. It simply enjoined suitors before the Common Pleas from continuing with their suits. As the injunctions could be enforced against the individuals involved, the proceedings in the Common Pleas were effectively terminated. Ellesmere was very much a prerogative man. He was continually a source of trouble to Coke. And Coke never did have the power to prevail over him.

In 1613 Coke was made Chief Justice of the King’s Bench, and called himself Lord Chief Justice of England. This was in a sense a promotion. But it was also a matter of kicking him upstairs. However, Coke’s way was set by this time. He did not take the clear hint. He continued his fight with the Chancery. And in the cases known as Commendams and Premuniro he again, and substantially, restricted the scope of prerogative power. To one who has tried to puzzle out the significance of these matters from the reports of the time, Mrs. Bowen’s account is especially interesting. Here for almost the first time is a clear presentation of Commendams and Premuniro.

But at the time they were clear enough to the king. Shortly thereafter, in 1616, Coke was removed from office. He was never again a judge. But he did not cease to be a public figure. He now became a Parliament man.

His career after he left the bench has not been so well known, and Mrs. Bowen performs a great service in digging out the record of his final activities. James had to have Parliaments, because he needed money. And this was the power that finally cracked the monarchy. Coke played a leading role in the Parliamentary events of the next twelve years. In one of the most crucial of these events, the adoption of the Petition of Right in 1628, Coke’s role was perhaps conclusive; and Mrs. Bowen’s account of this is the most dramatic passage in her fine book. By this time, Charles I was king. When the Commons sought to get commitments from him, he spoke nice words but would not cause to be uttered the prescribed formula which would transmute the Petition into a statute. But Coke and his associates brought Charles to book. He finally had to authorize the Clerk to speak the formula: “Soit droit fait comme il est desiré.” From the Petition of Right so approved are directly derived provisions of our own Constitution.


DURING all of this time Coke was also an author, easily the leading author on English law until the time of Blackstone. As Maitland remarked many years ago, “Coke’s books are the great dividing line, and we are hardly out of the Middle Ages until he has dogmatized its results.” He published eleven volumes of Reports during his life. These were far superior to anything which had preceded them. Indeed they are to this day cited — as they were at the time—simply as “Rep.” Everyone knows that the Reports are Coke’s Reports. Two further volumes were published after he died, from materials which he had collected. In addition he wrote a monumental treatise known as Coke upon Littleton. Littleton had been a leading medieval author. Coke’s work purports to be a commentary on it, but is in substance a complete new work rewriting and superseding whatever contribution Littleton had made to the law, and modernizing it, at the same time. In addition Coke prepared the manuscripts for three other volumes, known as his Second, Third, and Fourth Institutes. These were published after his death.

In Professor Samuel Thorne’s Selden Society Address on Coke, given in commemoration of the four-hundredth anniversary of his birth, there is an accurate description of the nuture of Coke’s writing. He knew all of the earlier law very thoroughly. In his writing — and in his judging—he did not hesitate to use what he thought was useful and to ignore anything that he thought was against the view he chose to reach. He constantly used the ancient authorities, but he even more constantly restated the law in modern terms and in terms which he felt were consistent with his conception of sound government. As Professor Thorne said: “ He has often been regarded as the protector and defender of the traditional rights of Englishmen. With that judgment we may safely agree, adding only that many of them were his own invention.” By Coke’s time Magna Carta was quite sacred. Anything that could be attached to Magna Carta could be made to appear sound and ancient. In very large measure, our conception of Magna Carta today goes back to Coke. It is not the barons at Runnymede who speak to us from 1215, but my Lord Coke who speaks from four centuries later.

What Coke wrote — especially what was published after his death—was the chief source of knowledge of English law in America until just before the Revolution. When James Otis argued the Writs of Assistance case, his chief authority was found in Coke’s Institutes. From Otis and others of his time, we derive much of our conception of Magna Carta. But it is almost pure Coke.

Mrs. Bowen, without directly saying so, makes the parallels plain enough. Indeed this is one of the most interesting elements in her treatment of Coke and his times. There was much in Coke’s period which finds some counterpart today. For many years after 1688 there was constant fear of Spain and the “Catholic conspiracy.” “War-and-nowar” is what Mrs. Bowen calls it. Mrs. Bowen shows how the Privy Council during Coke’s period, undoubtedly including many able and high-minded men among its members, was busily seeking out enemies of the kingdom. Since it exercised prerogative power, there were no limits to what it could do — indeed no limits to what it believed it was its duty to do. By itself and through its affiliates, the Star Chamber and the High Commission, people were brought in, questioned, tortured, punished. There was then no overriding law, nothing to which the citizen could appeal. The courts had no power over prerogative power. As Mrs. Bowen makes plain, many things were done which do not stand up against the light of history. The age had not yet developed the concept of responsibility and rest raint in the use of power. In the intervening years, we have developed those concepts and have put them into effect in much of our governmental structure. It still remains true that power which is virtually absolute can corrupt. Coke’s time was closer to the Middle Ages than ours, but in many ways its problems were quite similar.

Mrs. Bowen’s lively account of Coke’s life illustrates the striking change which may come over a man when he is given responsible power. Coke the advocate was a rather fearsome spectacle, even at a distance of three and a half centuries and through Mrs. Bowen’s generally sympathetic eyes. But Coke as a judge and as a parliamentarian is in some ways an entirely different man. As an advocate he was doing the modern equivalent of looking for headlines. He was self-seeking and quite subservient to the crown. Mrs. Bowen does not spare him here. Immediately on taking the bench, he changed his whole outlook. He became independent, before his time and ahead of the other judges. He was courageous to an extent which is probably hard to appreciate today. He was dismissed in 1616 because he alone of all the judges would not yield to the king’s demand that they should stay proceedings in their courts if the king thought the case affected his “power or profit,” in order that the king might indicate his wishes as to the decision. Coke’s response was, “That when the case should be, he would do that should be fit for a Judge to do.”

Mrs. Bowen makes it abundantly clear that Coke was a strong-minded man. His second wife, Lady Hatton, was a strong-minded woman. He married her for her money. Why she married him is hard to conceive. The marriage was about as completely unsuccessful as could be devised. There were bickering, fighting, lawsuits. Lady Hatton claimed that Coke made off with all her property, and apparently he did get most of it. They had one daughter, and they fought over her. Much of Coke’s life was rather serious, but there was one episode which would form the basis of a musical comedy. Mrs. Bowen does it sprightly justice. Lady Hatton took her daughter away in the middle of the night in order to prevent a marriage which Coke planned for her. Coke pursued with eleven retainers and a search warrant. He actually broke into the house where the daughter was kept and carried her away. There was much riding back and forth across the countryside. Lady Hatton took her complaint to the Privy Council. In due time the daughter married as Coke wished. Mrs. Bowen, faithfully recording history, shows that he almost always had his way.

Sir Edward Coke is one of the great figures of our legal and governmental history. Though he never left England, he was an important contributor to American law. As Professor Thorne said, “MoreAmerican than English law can be traced back to his books and no further.” His example gave courage to many succeeding generations of patriots, both English and American. He quickly became a symbol, so that what he actually did became less important than what he was regarded as having done. Though he moved in the field of the law, he was not a drab man. Though he wrote books, he was not a scholar. He was a man of action, of drive, of courage, a largely unpleasant man whose unpleasantness can be readily overlooked because his contribution has been immense. Mrs. Bowen has brought him back to life. She has written as a scholar, after exhaustive search into the original sources. The book is thoroughly sound and shows Coke’s important place in law and history. But Coke always moves through her pages vigorously and colorfully. That is the kind of man he was; and it is the kind of book she has written.